Unreported / Non-Citable
Background
Fernando Martinez-Rodriguez was convicted and sentenced in the Northern District of Texas under 8 U.S.C. § 1326(a) for illegal reentry. His appointed counsel, the Federal Public Defender, subsequently moved to withdraw from the appeal, filing an Anders brief pursuant to Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). An Anders brief is the procedural mechanism by which appointed counsel represents to the court that the appeal presents no nonfrivolous issue warranting further litigation.
Martinez-Rodriguez did not file a pro se response to counsel’s brief. The Fifth Circuit reviewed both counsel’s submission and the relevant portions of the record to independently assess whether any arguable basis for appeal existed.
The Court’s Holding
A per curiam panel of Judges Wiener, Willett, and Wilson concurred with counsel’s assessment that the appeal presented no nonfrivolous issue for appellate review. The court accordingly granted counsel’s motion to withdraw, excused counsel from further responsibilities, and dismissed the appeal pursuant to Fifth Circuit Rule 42.2.
However, the court identified a clerical error in the written judgment: the district court had cited both 8 U.S.C. §§ 1326(a) and (b)(1) as grounds for conviction, when the record reflected that Martinez-Rodriguez was convicted and sentenced solely under § 1326(a). The Fifth Circuit remanded to the district court for the limited purpose of correcting that error in the written judgment under Federal Rule of Criminal Procedure 36.
Key Takeaways
- The appeal was dismissed as wholly frivolous following an Anders review, with appointed counsel granted leave to withdraw.
- The Fifth Circuit independently reviewed the record and found no nonfrivolous issue, consistent with its obligations under Anders.
- Despite the dismissal, the court remanded on a narrow basis to correct a clerical discrepancy: the judgment incorrectly cited § 1326(b)(1) in addition to § 1326(a), when only the latter was the basis for conviction and sentence.
Why It Matters
This unpublished decision illustrates the Fifth Circuit’s practice of scrutinizing the written judgment even when dismissing a frivolous appeal. The distinction between § 1326(a) — the base illegal reentry offense — and § 1326(b)(1) — which carries an enhanced penalty for defendants with prior misdemeanor convictions — is legally significant, and an erroneous citation to the enhancement provision in a judgment can have collateral consequences for a defendant’s record.
The use of Federal Rule of Criminal Procedure 36 to correct clerical errors in judgments is a routine but important mechanism, and this case is a reminder that appellate courts will order such corrections sua sponte to ensure the written judgment accurately reflects the actual conviction, even in the context of an otherwise meritless appeal.